Supreme Court of the United States · Official docket →
Trevor Murray v. UBS Securities, LLC, et al.
Paid petition · United States Court of Appeals for the Second Circuit, No. 20-4202, 21-56 · judgment August 5, 2022
Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.
Question presented
The Sarbanes-Oxley Act of 2002 protects whistleblowers who report financial wrongdoing at publicly traded companies. 18 U.S.C. § 1514A. When a whistleblower invokes the Act and claims he was fired because of his report, his claim is "governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code." 18 U.S.C. § 1514A(b)(2)(C). Under that incorporated framework, a whistleblowing employee meets his burden by showing that his protected activity "was a contributing factor in the unfavorable personnel action alleged in the complaint." 49 U.S.C. § 42121(b)(2)(B)(iii). If the employee meets that burden, the employer can prevail only if it "demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior." Id. § 42121(b)(2)(B)(iv). The Question Presented is: Under the burden-shifting framework that governs Sarbanes-Oxley cases, must a whistleblower prove his employer acted with a "retaliatory intent" as part of his case in chief, or is the lack of "retaliatory intent" part of the affirmative defense on which the employer bears the burden of proof?
Counsel of record
For petitioner
Robert Lloyd Herbst
Herbst Law, PLLC
For respondent
Eugene Scalia
Gibson, Dunn & Crutcher LLP
Case
Conference history
Distributed for 2 conferences
Amicus briefs
2 cert-stage · 12 merits
(6 supporting pet./neither, 6 respondent)
Argument & decision
Argued October 10, 2023 — Easha Anand · Eugene Scalia. Audio and transcript
Decided February 8, 2024. Opinion by Sotomayor.
Proceedings
- Aug 13 2024Record returned to the United States District Court for the Southern District of New York.
- Mar 11 2024Judgment issued.
- Feb 08 2024Judgment REVERSED and case REMANDED. Sotomayor, J., delivered the opinion for a unanimous Court. Alito, J., filed a concurring opinion, in which Barrett, J., joined.
- Oct 10 2023Argued. For petitioner: Easha Anand, Stanford, Cal.; and Anthony A. Yang, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: Eugene Scalia, Washington, D. C.
- Sep 26 2023Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
- Sep 07 2023Reply of petitioner Trevor Murray filed. (Distributed)
- Aug 15 2023Brief amicus curiae of Securities Industry and Financial Markets Association filed. (Distributed)
- Aug 15 2023Brief amicus curiae of Chamber of Commerce of the United States of America filed. (Distributed)
- Aug 15 2023Brief amicus curiae of Airlines for America filed. (Distributed)
- Aug 15 2023Brief amicus curiae of American Association of Railroads filed. (Distributed)
- Aug 15 2023Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
- Aug 14 2023Brief amicus curiae of Washington Legal Foundation filed. (Distributed)
- Aug 11 2023Brief amicus curiae of The Society for Human Resource Management filed. (Distributed)
- Aug 08 2023Brief of respondents UBS Securities, LLC, et al. filed. (Distributed)
- Jul 27 2023CIRCULATED
- Jul 27 2023Record from the United States Court of Appeals for the Second Circuit electronically received and available with the Clerk.
- Jul 21 2023Sealed material from the USDC, S. Dist., NY available with the Clerk.
- Jul 17 2023Record requested from the United States Court of Appeals for the Second Circuit.
- Jul 14 2023SET FOR ARGUMENT on Tuesday, October 10, 2023.
- Jul 05 2023Brief amicus curiae of United States filed.
- Jul 05 2023Brief amici curiae of The Anti-Fraud Coalition, et al. filed.
- Jul 05 2023Brief amicus curiae of Public Citizen filed.
- Jul 05 2023Brief amicus curiae of Academy of Rail Labor Attorneys filed.
- Jun 30 2023Brief amicus curiae of National Whistleblower Center filed.
- Jun 30 2023Amicus brief of Senator Chalres Grassley & Senator Ron Wyden not accepted for filing. (July 05, 2023 - Duplicate submission)
- Jun 30 2023Brief amici curiae of Senator Chalres Grassley, et al. filed.
- Jun 27 2023Brief of Trevor Murray not accepted for filing. (To be corrected and reprinted)
- Jun 27 2023Brief of petitioner Trevor Murray filed. (Docketed July 13, 2023)
- Jun 27 2023Joint appendix filed.
- May 17 2023Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including June 27, 2023. The time to file respondents' brief on the merits is extended to and including August 8, 2023.
- May 05 2023Motion for an extension of time for the filing of the briefs on the merits filed.
- May 01 2023Petition GRANTED.
- Apr 24 2023DISTRIBUTED for Conference of 4/28/2023.
- Apr 05 2023DISTRIBUTED for Conference of 4/21/2023.
- Apr 05 2023Reply of petitioner Trevor Murray filed. (Distributed)
- Mar 20 2023Brief of respondents UBS Securities, LLC, et al. in opposition filed.
- Feb 17 2023Brief amicus curiae of Public Citizen filed.
- Feb 17 2023Brief amici curiae of U.S. Senator Charles E. Grassley, et al. filed. (April 13, 2023) (Distributed)
- Feb 06 2023Motion to extend the time to file a response is granted and the time is extended to and including March 20, 2023.
- Feb 03 2023Motion to extend the time to file a response from February 17, 2023 to March 20, 2023, submitted to The Clerk.
- Jan 13 2023Petition for a writ of certiorari filed. (Response due February 17, 2023)
- Nov 16 2022Application (22A438) granted by Justice Sotomayor extending the time to file until January 13, 2023.
- Nov 11 2022Application (22A438) to extend the time to file a petition for a writ of certiorari from December 14, 2022 to January 13, 2023, submitted to Justice Sotomayor.